STATE OF NEW YORK ________________________________________________________________________ 2040--A 2019-2020 Regular Sessions IN ASSEMBLY January 22, 2019 ___________ Introduced by M. of A. KIM -- Multi-Sponsored by -- M. of A. SIMON, TAGUE -- read once and referred to the Committee on Governmental Oper- ations -- reported and referred to the Committee on Ways and Means -- committee discharged, bill amended, ordered reprinted as amended and recommitted to said committee AN ACT to amend the state finance law, in relation to damages to contracts occasioned by delay The People of the State of New York, represented in Senate and Assem- bly, do enact as follows: 1 Section 1. The state finance law is amended by adding a new section 2 138-b to read as follows: 3 § 138-b. Damages occasioned by delay. 1. For purposes of this section 4 the following terms shall have the following meanings: 5 (a) "State agency" shall mean any state department, board, bureau, 6 commission, division, office, council, or state committee or any state 7 authority as defined in subdivision one of section two of the public 8 authorities law. Such term shall not include the legislature or judici- 9 ary. 10 (b) "Contract" shall mean any agreement awarded by a state agency for 11 the design, construction, reconstruction, demolition, alteration, repair 12 or improvement of any public works project. 13 (c) "Delay" shall mean any delay, disruption, interference, ineffi- 14 ciencies, impedance, hindrance or acceleration in the performance of the 15 contract which causes damages to be incurred by a contractor. 16 (d) "Claim" shall mean a request for additional costs only from the 17 following causes: 18 (i) the failure of the state agency to take reasonable measures to 19 coordinate and progress the work; 20 (ii) extended delays attributable to the state agency in the review or 21 issuance of orders-on-contract or field orders, in shop drawing reviews 22 and approvals or as a result of the cumulative impact of multiple orders EXPLANATION--Matter in italics (underscored) is new; matter in brackets [] is old law to be omitted. LBD05157-02-9A. 2040--A 2 1 on contract, which constitute a qualitative change to the project work 2 and which have a verifiable impact on project costs; or 3 (iii) the unavailability of the site for such an extended period of 4 time which significantly affects the scheduled completion of the 5 contract. 6 2. All contracts made and awarded shall contain a clause which allows 7 a contractor to make a claim for additional costs arising from delay in 8 the performance of a contract if such delay is caused by a material act 9 or omission of the state agency. 10 3. The contractor shall provide a notice of claim of an anticipated 11 claim for delay to a state agency by personal service or certified mail 12 no more than fifteen days after such contractor knew the facts which 13 form the basis of the claim. The state agency shall acknowledge receipt 14 of the notice, in writing, within five days. Such notice shall at a 15 minimum provide a description of any operations that were, are being or 16 will be delayed, and the date or dates and reasons for the delay. In no 17 case shall oral notice constitute notice pursuant to this section or be 18 deemed to constitute a waiver of the written notice requirement. For 19 the purposes of this section, failure to provide such notice shall be 20 considered to have prejudiced the state agency. 21 4. Failure by a contractor to adequately progress the completion of 22 work shall be considered in determining the causes of delay. For any 23 claim asserted pursuant to this title, the contractor shall keep 24 detailed written records of the costs and shall make them available for 25 the purposes of audit and review. Failure to provide the required writ- 26 ten notice or to maintain and furnish records of the costs of such 27 claims shall constitute a waiver of the claim. 28 5. The following information shall be provided by the contractor upon 29 request of a state agency if not previously supplied: 30 (a) a description of the operations that were delayed, the reasons for 31 the delay and an explanation of how they were delayed; 32 (b) a detailed factual statement of the claim providing all necessary 33 dates, locations and items of work affected by the claim; 34 (c) the date on which actions resulting in the claim occurred or 35 conditions resulting in the claim became evident; 36 (d) the names, functions and activities of each contractor involved 37 in, or knowledgeable about facts that gave rise to such claim; 38 (e) the identification of any pertinent documents, and the substance 39 of any material oral communication relating to such claim; 40 (f) the amount of additional compensation sought; and 41 (g) if an extension of time is also requested, the specific number of 42 days for which it is sought and the basis for such request as determined 43 by an analysis of the construction progress schedule. 44 6. When submitting any claim, the contractor shall certify in writing 45 and under oath that the supporting data is accurate and complete to his 46 or her best knowledge or belief, and that any amount demanded reflects, 47 in good faith, what he or she believes to be the state agency's liabil- 48 ity. 49 § 2. This act shall take effect on the one hundred eightieth day after 50 it shall have become a law and shall apply to all contracts entered into 51 on and after such date.